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Modification/Termination of Maintenance

Unless expressly stated in the parties’ Judgment of Dissolution of Marriage, all forms of maintenance are modifiable upon the showing of a substantial change in circumstances. Some examples include the loss or reduction in income of the spouse paying maintenance, increase in income or financial position of the spouse receiving maintenance, retirement of either party, or any number of other reasons. The party seeking a modification of support bears the burden of proving a substantial change has occurred, and that the change in circumstances warrants a modification of the duration or amount of maintenance payments.

Reductions in the income earned by the spouse paying maintenance is a common reason for seeking a modification of maintenance. In assessing a change in employment of the paying spouse, including a loss of employment, the court will consider the reasons why he or she now has a decreased ability to pay their support obligation. In certain situations, the court may reject a request modify a maintenance obligation due to job loss or reduction in income if the court deems that the change was voluntary. A court may also reject a request to modify maintenance if the reduction in income is only temporary, or if it is unsubstantial, given the other relevant facts and circumstances of the payor’s financial condition.

Furthermore, maintenance can terminate if certain statutory factors occur, including the death of either party, remarriage of the receiving party, or the receiving party cohabitating with another in a resident, continuing conjugal basis. At the time of the divorce, the parties may also agree to limit the list of terminating events. That means that any of the above statutory factors regarding termination of maintenance can be added to or excluded altogether.

One frequently litigated termination event is the cohabitation of the spouse receiving maintenance with another on a resident, continuing conjugal basis. It is often difficult to prove without an admission by the spouse receiving maintenance. In determining whether to terminate maintenance, there is no one, single determinative factor as to whether a person is cohabitating as defined by the statute. The court will look to the individual circumstances of the case. Depending on the facts, the court might still find cohabitation exists, even if the cohabiting spouse maintains a separate legal residence from his or her significant other.. The court may also consider whether the cohabiting spouse spends the night at the significant other’s home, and if so, how frequently. Other factors include whether the cohabiting spouse spends holidays with his or her significant other, and whether they take vacations together. The court may want to know whether they share household expenses or comingle their money in each other’s bank accounts. In short, the court is looking to see whether the two hold themselves out as a husband and wife would.

The attorneys at Kollias & Giese, P.C., have extensive experience in dealing with the numerous ways in which maintenance can be modified or terminated under Illinois law. If modification or termination of maintenance is an issue in your case, you should contact them to discuss the individual circumstances of your case.

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